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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Robert A. Spiry ) File No.: EB-02-ST-045
) NAL/Acct. No. 200332980002
Tacoma, WA ) FRN 0007939218
MEMORANDUM OPINION AND ORDER
Adopted: January 24, 2007 Released: January 26, 2007
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order ("Order"), we grant to the extent
indicated herein, the petition for reconsideration filed by Robert A.
Spiry ("Mr. Spiry"). Mr. Spiry seeks reconsideration of the Forfeiture
Order in which the Assistant Chief, Enforcement Bureau, found him
liable for a monetary forfeiture in the amount of $10,000 for willful
and repeated violation of Section 301 of the Communications Act of
1934, as amended ("Act"). The noted violation involves Mr. Spiry's
operation of a radio station without Commission authorization. For the
reasons discussed below, we reduce the forfeiture amount from $10,000
to $1,500.
II. BACKGROUND
2. On multiple occasions, agents from the Commission's Seattle,
Washington Field Office ("Seattle Office") working in the Tacoma,
Washington area as a result of interference complaints, determined,
using direction-finding equipment and techniques, that the
interference resulted from excessively high powered CB transmissions
originating from Mr. Spiry's residence and from his mobile unit in his
vehicle. During inspections conducted on April 2, 2002 and November
5, 2002, Seattle Office agents determined that Mr. Spiry was operating
transmitters that were not FCC certified in violation of Section
95.409 of the Commission's Rules ("Rules"), and that Mr. Spiry was
operating with a linear amplifier attached to his CB radio transmitter
in violation of Section 95.411 of the Rules. During both inspections,
Mr. Spiry was advised that his use of unauthorized and non-certified
equipment voided his blanket authority to operate his CB station.
Additionally, on each occasion, the agents issued a Notice of
Unlicensed Operation to Mr. Spiry to further inform him that the
unauthorized operation would be considered unlicensed operation in
violation of Section 301 of the Act.
3. On December 30, 2002, the District Director of the Seattle Office
issued Mr. Spiry a Notice of Apparent Liability for Forfeiture ("NAL")
in the amount of $10,000 for apparent willful and repeated violation
of Section 301 of the Act. In his January 15, 2003 response, Mr. Spiry
admitted that he caused the offending interference as set forth in the
NAL. Mr. Spiry stated that he had ceased CB radio transmissions, had
obtained an amateur radio license, and was unable to pay the
forfeiture proposed in the NAL. The Assistant Chief of the Enforcement
Bureau issued a Forfeiture Order on October 18, 2004, rejecting Mr.
Spiry's arguments and affirming the forfeiture proposed by the NAL. On
November 16, 2004, Mr. Spiry sought reconsideration of the Forfeiture
Order. Therein, Mr. Spiry claimed that there are no more interference
complaints; he received only one notice for unauthorized operation;
and, Commission agents acted improperly in discussing whether to
reduce the forfeiture in return for his turning in his amateur
license. He further stated that he does not have the ability to pay
the $10,000 forfeiture penalty assessed. In support of his inability
to pay claim, Mr. Spiry has submitted copies of tax returns covering a
five year period.
III. DISCUSSION
4. Mr. Spiry's statement that there are no more complaints of
interference does not mitigate his violation. As set forth in
paragraph 6 of the Forfeiture Order, remedial efforts taken to comply
with our rules after the violation are not grounds for reducing or
canceling a violation. Further, while Mr. Spiry claimed he received
only one Notice of Unlicensed Operation, the record reflects that he
actually was issued two, only one of which he signed. Moreover, the
Notices only supplemented the repeated oral warnings by the Seattle
Office agents during their April 2, 2002 and November 5, 2002
inspections. Additionally, contrary to Mr. Spiry's claim, there was no
impropriety in the agents discussing his case and considering possible
rescission or surrender of his amateur license, because of his
unauthorized CB operation in violation of Section 301. It is well
established that a violation in one service can impact on other
licenses that an individual may have. In summary, the dispositive fact
is that Mr. Spiry was determined to be in willful and repeated
violation of Section 301 of the Act. Accordingly, the $10,000
forfeiture is consistent with the Commission's policy and precedent.
5. As to his inability to pay claim, Mr. Spiry has demonstrated an
inability to pay the $10,000 forfeiture. Therefore, a reduction of the
forfeiture amount from $10,000 to $1,500 is appropriate.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Act
and Section 1.106 of the Rules, Mr. Spiry's petition for
reconsideration IS GRANTED to the extent set forth above.
7. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's Rules, Mr.
Spiry IS LIABLE FOR A MONETARY FORFEITURE in the amount of one
thousand five hundred dollars ($1,500) for willful and repeated
violation of Section 301 of the Act.
8. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. Payment may be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Acct. No. referenced
above. Payment by check or money order may be mailed to Forfeiture
Collection Section, Finance Branch, Federal Communications Commission,
P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail
may be sent to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number
911-6106. Requests for full payment under an installment plan should
be sent to: Associate Managing Director - Financial Operations, 445
12th Street, SW, Room 1-A625, Washington, D.C. 20554.
9. IT IS FURTHER ORDERED THAT this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Mr. Robert A.
Spiry to his address of record.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
Robert A. Spiry, Forfeiture Order, 19 FCC Rcd 19891 (Enf. Bur. 2004)
("Forfeiture Order").
47 U.S.C. S 301.
March 13, 2002; April 2, 2002; October 29, 2002; November 5, 2002.
47 C.F.R. S 95.409.
47 C.F.R. S 95.411.
Robert A. Spiry, Notice of Apparent Liability for Forfeiture, NAL/Acct.
No. 200332980002 (Enf. Bur., Seattle Office, released December 30, 2002).
Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099, 6099 (1994).
See William Rogers, Memorandum Opinion and Order, 92 FCC 2d 187 (1982)
(Commission has authority to suspend an operator's license upon proof
sufficient to satisfy the Commission that the licensee violated any
provision of the Act.)
See Pembroke Square Associates, Forfeiture Order, 20 FCC Rcd 10585 (Enf.
Bur. 2005); Cumulus Licensing Corp. Forfeiture Order, 19 FCC Rcd 24,815
(Enf. Bur. 2004); Aquila, Inc., Forfeiture Order, 19 FCC Rcd 22,507 (Enf.
Bur. 2004).
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-163
3
Federal Communications Commission DA 07-163